LAWS(P&H)-2016-4-36

GURPAL SINGH AND ORS. Vs. STATE OF PUNJAB

Decided On April 23, 2016
Gurpal Singh And Ors. Appellant
V/S
STATE OF PUNJAB Respondents

JUDGEMENT

(1.) It is a case of recovery of 6 kgs of opium from possession of petitioner No. 2 Jugraj Singh. Report of chemical examiner having not been received within a period of 180 days which expired on 29.1.2016, as an abundant caution, the prosecution agency opted to present challan without report of Chemical Examiner on 23.12.2015. The report of chemical examiner was received on 2.3.2016 and the petitioners have been charged for having committed offence under Sec. 18 of the NDPS Act on 30.3.2016. The petitioners had opted to file an application for the grant of bail on 30.1.2016 on the ground that incomplete challan without Chemical Examiner report will not be a legal report under Sec. 173 (2) Cr.P.C. The application was dismissed vide order dated 3.2.2016 holding that the petitioners will not be entitled to be released under Sec. 167 (2) Cr.P.C., relying upon the judgment of the Apex Court in Narendra Kumar Amin v/s. CBI and others, Crl. Appeal No. 94 of 2015, (arising out of SLP (Crl.) No. 9599 of 2013) decided on 15.1.2015.

(2.) This revision petition challenging the order dated 3.2.2016 was filed on 20.2.2016. The circumstances of the above said case indicate that the prosecution agency had not filed any application under Sec. 36 -A(4) of the NDPS Act, to defeat the indefeasible right accrued to the petitioner under Statute prior to the expiry of the period of 180 days i.e. before 29.1.2016.

(3.) The short question which is required to be determined in the present case is whether failure on the part of the prosecution agency in filing application under Sec. 36 -A(4) of the NDPS Act to defeat the right of accused alleged to have been found in possession of commercial quantity of the contraband and presentation of challan without the Chemical Examiner report could have created a circumstance of not having presented the challan within the period of 180 days. In other words, whether challan without the report of chemical examiner presented within a period of 180 days could be said to be a challan as per the legal requirements of Sec. 173 (2) Cr.P.C. read with Sec. 173 (5) Cr.P.C., dis -entitling the accused for the default bail under Sec. 167 (2) Cr.P.C.